RELIST WATCH

Holding protest organizers liable for injuries

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court took care of a lot of relist business at its last conference, denying review in four serially relisted cases, in each instance with separate writings from the justices.

It finally denied review in the two cases challenging New York rent stabilization laws as a taking, which had been relisted 11 times since the court’s end-of-summer long conference. Justice Clarence Thomas filed an opinion respecting the denial of review, saying that while it was appropriate to deny review because of how the issues were presented here, eventually the court should address the issue in an appropriate case.

The court also denied review in a case in which the Missouri Department of Corrections claimed it had been deprived of a fair trial in an employment discrimination case because the judge struck potential jurors who had religious objections to homosexuality. Justice Samuel Alito wrote an opinion respecting the denial in which he said that the lower court’s decision “exemplifies the danger that I anticipated in Obergefell v. Hodges,” in which the court held that the 14th Amendment protects the right of same-sex couples to marry, “that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government.”

Lastly, the court denied review in a case challenging a prestigious Virginia magnet high school’s admissions policy, which while facially neutral had the effect of reducing the admission of Asian American students from 73% to 54% for the class of 2025. Alito dissented, joined by Thomas. He said that the decision of the U.S. Court of Appeals for the 4th Circuit “completely distorted the meaning of disparate impact” by permitting policies that disparately affected one racial group so long as “they were still overrepresented in the [school’s] student body.” The 4th Circuit’s reasoning, he said, “is a virus that may spread if not promptly eliminated.”

The court also took action in a pair of recently relisted cases involving the lawfulness of a Washington state electoral district. The court denied Trevino v. Palmer without comment. But perhaps because the litigants indicated that “the parties are currently engaged in the remedial process aimed at adopting a new [electoral district] map” in the remaining case, the Supreme Court took the unusual step of remanding to the district court “with instructions to enter a fresh judgment from which an appeal may be taken to the United States Court of Appeals for the Ninth Circuit.” Freshness is everything.

The justices will be considering 109 petitions and applications at this week’s conference. Just two of them are new relists.

The first of this week’s new relists, Mckesson v. Doe, is already on its second (or, if you count stay applications, third) trip to the Supreme Court. It arises out of a Black Lives Matter protest that took place in Baton Rouge, Louisiana in the wake of the police shooting of Alton Sterling there in the summer of 2016. DeRay Mckesson helped organize protests in front of the Baton Rouge police headquarters. During those protests, a police officer known by the pseudonym John Doe was struck by a hard object and badly injured. Doe sued Mckesson, together with “Black Lives Matter” as an unincorporated association, for liability for his injuries. He sought damages for Mckesson’s negligence, alleging that he “knew or should have known … that violence would result” from the demonstration he “staged;” that he was “present during the protest” but “did nothing to calm the crowd;” and that he had “directed” demonstrators to protest in the street, in violation of state law prohibiting the blocking of a public highway.

The district court dismissed the case on the ground that the suit was barred under NAACP v. Claiborne Hardware Co., which limited the imposition of liability on protest organizers for the “unlawful conduct of others” occurring “in the context of … activity” protected by the First Amendment. A panel of the U.S. Court of Appeals for the 5th Circuit, in an initial 2019 opinion and a second opinion upon rehearing, at first unanimously held that Mckesson could be liable in negligence, concluding that he owed a duty to Doe and others “to use reasonable care so as to avoid injury.”

In December 2019, 10 days after Mckesson filed a petition for certiorari, the court of appeals, acting on its own initiative, issued a third opinion, reflecting that one member of the panel dissented on the negligence and First Amendment issues. The former Tweeter Laureate of Texas from the good old days of Twitter, Judge Don Willett, questioned whether the majority’s “exotic” negligent-protest theory could be squared with Louisiana state law’s general rule against tort liability for the criminal acts of others, suggesting that the duty question should have been certified to the Louisiana Supreme Court. Willett also argued that the case would be foreclosed by Claiborne Hardware, and that the 5th Circuit panel decision would have imposed tort liability on protest leaders ranging from the Founding-Era Sons of Liberty to Martin Luther King.

The full 5th Circuit then declined to rehear the case, by an 8-to-8 tie vote. In dissent, Judge James Dennis argued that, by permitting the panel’s “freewheeling form of strict liability” to stand, the court had “grievously failed to … apply the longstanding protections of the First Amendment.”

After three pandemic-era relists (and three pandemic-era Relist Watch columns, each written by an unshaved me from my basement home office), the Supreme Court granted certiorari and vacated the 5th Circuit’s decision. By a 7-1 vote (the newly installed Justice Amy Coney Barrett didn’t participate, and Thomas dissented), the court concluded that the 5th Circuit had committed a threshold error: Because Claiborne’s limitations would be “implicated only if Louisiana law permits recovery … in the first place,” and because the tort theory was so “novel,” “uncertain,” and “fraught with [First Amendment] implications,” the court of appeals should not have decided the constitutional question without seeking the Louisiana Supreme Court’s assurance that the majority’s understanding of state law was correct.

The 5th Circuit then certified the issue to the Supreme Court of Louisiana, which issued an opinion holding that a protest leader could be sued for negligence “under the facts alleged in the complaint.”

In June 2023, the same 5th Circuit panel issued a new 2-1 decision permitting the negligent-protest claims to proceed. The majority concluded that Doe had alleged that “Mckesson created unreasonably unsafe conditions” by organizing the protest but failing to dissuade the other protestors from throwing items.” Willett again dissented, maintaining that “[t]he novel ‘negligent protest’ theory” is foreclosed — squarely — by the Constitution and precedent.”

Mckesson now returns to the Supreme Court, again arguing that the First Amendment bars him from being held liable for the actions of others during a protest he organized. The petition’s argument section begins with a phrase that former followers of the Tweeter Laureate will find themselves nodding in agreement to: “Judge Willett was right.” Mckesson is supported by six “friend of the court” briefs. Doe argues that Mckesson’s conduct can be punished under “reasonable time, place and manner” restrictions. We should know in a week or two whether this petition will have legs.

That brings us to this week’s second new relist, Sandoval v. Texas. Under the Fifth Amendment right to due process and the Sixth Amendment right to counsel, a criminal defendant has been recognized to have a right to be present for all “critical stages” of his criminal proceedings. Gustavo Tijerina Sandoval was convicted and sentenced to death for the murder of Javier Vega, Jr. Sandoval argues that he was denied his constitutional rights because the Texas trial court conducted preliminary hearings in his case on prospective jurors’ statutory qualifications, excuses, and exemptions from jury service outside his presence. Sandoval argues that the Supreme Court should review his case to decide when the “critical stages” of the criminal proceedings begin. The state of Texas argues that Sandoval did not raise that argument in a timely manner and has forfeited it. We should know more soon. But be forewarned that the Supreme Court does a careful review in capital cases, and the factbound nature of this case candidly has a bit of a “due diligence” feel rather than a suggestion that the case involves an issue of overriding legal importance.

Tune in next week when I’m proven wrong. Until next time!

New Relists

McKesson v. Doe, 23-373
Issue: Whether the First Amendment and this court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act, when it is undisputed that the leader neither authorized, directed, nor ratified the perpetrator’s act, nor engaged in or intended violence of any kind.
(relisted after the Feb. 16 conference)

Sandoval v. Texas, 23-5618
Issues: (1) How courts should determine when jury empanelment begins for a particular defendant’s case, triggering the due process right to be present, given that jury selection is one of the most critical phases of a criminal trial; and (2) whether the state court erred when it held, without analysis of the underlying facts, that the trial court did not violate Gustavo Sandoval’s due process rights when it excluded him and his counsel from proceedings in which members of the jury panel who were called for his trial — and who knew the case that they were summoned for — sought discretionary excusals from the court.
(relisted after the Feb. 16 conference)

Returning Relists

Speech First, Inc. v. Sands, 23-156
Issue: Whether university bias-response teams — official entities that solicit, track, and investigate reports of bias; ask to meet with perpetrators; and threaten to refer students for formal discipline — objectively chill students’ speech in violation of the First Amendment.
(relisted after the Nov. 17, Dec. 8, Jan. 5, Jan. 12, Jan. 19 and Feb. 16 conferences; rescheduled before the Dec. 1 conference)

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5, Jan. 12, Jan. 19 and Feb. 16 conferences)

Compton v. Texas, 23-5682
Issues: (1) Whether a court’s comparison of generalizations about all the female prospective jurors who were struck by the prosecution with generalizations about the male jurors not struck by the prosecution, rather than a side-by-side analysis of individual jurors, disregards the basic equal protection principle that one discriminatory strike is too many; (2) whether Texas exercised its peremptory strikes in a prohibited discriminatory fashion.
(relisted after the Jan. 5, Jan. 12, Jan. 19 and Feb. 16 conferences)